Travel ban suit fixates on what it doesn’t say
Judges question whether Trump’s rhetoric applies
RICHMOND, Va. — President Donald Trump’s political statements trailed him on Monday in court, where judges seemed skeptical his revised travel ban was based on national security concerns rather than his campaign promise to ban Muslims from entering the United States.
Thirteen judges on the U.S. Court of Appeals for the 4th Circuit were considering the case, and, during an extraordinary twohour hearing, judge after judge asked acting solicitor general Jeffrey Wall about statements during the campaign and afterward in which Trump talked about a Muslim ban.
Intense questioning
Wall said the order temporarily suspending foreign travelers from six majority Muslim countries was to protect the United States by reviewing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.
But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether targeting Muslims was his real purpose.
The Trump administration’s new policy temporarily suspends the U.S. refugee program and blocks new visas to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen.
In March, a judge in Maryland and another in Hawaii halted enforcement of critical sections, pointing to comments by Trump and top advisers indicating that they wanted to bar Muslims from entry.
Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment. But he said Trump’s revised executive order was neutral.
Judge Pamela Harris pressed Wall. “Clearly the law has a disparate impact on Muslims,” she said. “In what sense is it neutral?”
Wall pointed out that the ban did not affect Muslims from countries other than the six mentioned in the order, and said the Supreme Court has ruled in the past that in matters of immigration and national security, the president’s judgment is not open to judicial secondguessing.
“It is not a Muslim ban,” he said.
The 4th Circuit is considering whether to leave in place the Maryland decision siding with challengers who say the order violates First Amendment prohibitions on government condemnation of a particular religion.
To restore the administration’s policy in full, the Justice Department would have to win in Richmond and in its appeal of the Hawaii ruling, which is scheduled for argument on May 15 before the U.S. Court of Appeals for the 9th Circuit. The losing party in either case is likely to appeal to the Supreme Court.
Many of the judges Monday suggested they could not ignore the president’s previous statements. Three judges, Robert King, Henry Floyd and James Wynn, all nominated by Democrats, directly quoted Trump.
“He’s never repudiated what he said about Muslims,” King said.
Several judges also asked whether a Trump campaign statement calling for a “total and complete shutdown of Muslims entering the United States” was still on his website.
The statement appeared to have been removed as the court hearing in Richmond got underway.
‘Entitled to deference?’
The challenge in Maryland was brought by organizations and individuals, including a Muslim in the United States whose relative would be affected by the ban. They are being represented by the National Immigration Law Center and the American Civil Liberties Union.
Omar Jadwat, an attorney for the American Civil Liberties Union, struggled at times as he faced tough questioning, mostly by the Republican-nominated members of the court.
“Is the executive not entitled to some deference?” asked Judge Dennis W. Shedd.
Jadwat said the president is “not allowed to set a policy that violates the Establishment Clause,” referring to the Constitution’s command that government not favor one religion over another.
How quickly the 4th Circuit will rule is not known. But the court took the unusual step of bypassing the traditional three-judge panel and heard the case as a full group of 13. Two judges recused themselves: Allyson Kay Duncan, a George W. Bush nominee, and J. Harvie Wilkinson, a Ronald Reagan nominee.